tv Key Capitol Hill Hearings CSPAN January 14, 2014 8:00pm-9:01pm EST
i think americans across the political spectrum want us to have this debate. and want to have a clear understanding of what is going -- of where it's going so we're trying to get as much as we can into a public debate and have a clear understanding of what is going on. we are trying to get as much as we can into a public hearing. all of us on this committee have had access, as have the five witnesses, to classified matters . we try to go into as much as we can in open session. anyher we conduct intelligence activity, the ports is the assessment of its value. it is important, especially with the phone collection program done under section 215 of the patriot act. it is you not -- it is not uniquely valuable enough to
constitute massive violations on americans privacy. the review group also concluded this. to information contributes terrorist investigations by section 215 was nonessential. they could have been obtained in , usingy manner conventional section 215 orders. following pages, it said that section 215 provides relevant information in a small number of cases. withsa cannot say confidence that the outcome would have been different without the alcock -- without program.on 215 - the privacy implications of this sort of massive surveillance in the digital age cannot be overstated.
the review group report provides valuable insight. it appropriately questions whether we are drawing a rational line between metadata and content. i think that is critically important, given that many of our surveillance laws depend upon the distinction. -- this is important as we take up the national security letters. we do not talk as much about them. using them, the fbi can obtain detailed information about individuals communications records and financial transactions without additional approval. the recipients of national security letters are subject to permanent gag orders. senator durbin and i propose additional safeguards on this
controversial authority for years to limit the use and make sure that recipients of national security letters have an opportunity for judicial review. something that most americans think already exists. it would change the way national security letter operates -- letters operates. . i think that we have to look at it. report wants to create an institutional public service advocate. i strongly support that proposal and i am concerned that merely allowing the fisa court to participate in time to time will publicrove nor rebuild
product -- confidence in the process. if you think about it, we are having a debate about americans fundamental relationship with their government. the government exists for americans and not the other way around. is about the power to create massive databases about citizens. the feeling i would have regardless of who is the head of our government. i believe that we must impose stronger limits on government surveillance powers and i am confident that most americans agree with me. having said that, we want to do it right. today, we had ceoard clarke, who was a and the chairman of the board of governors. during his 30 years of public service, he was a senior national security advisor to
george w. bush. they will have michael, the recently retired deputy director of the central intelligence agency after more than 30 years service. during that time, he served as the acting director and he got his degree from the university of a grin. -- akron. charles brown is from the high school. the professor serves as the dean of the law school. is a professor at harvard law school and served at affairsce of regulatory and serves as the advisor to the
department of justice. he was a law clerk to thurgood marshall. professor at the institute of technology. he was at the ohio state university college of law. he was named of -- to cochair. he served as the clinton administration's chief counsel from 1999 through 2001. did you have a particular way in which you wanted to receive? >> after consultation, we have a brief opening statements. diversity,ding our which you just signaled, we began this process with great admiration and gratitude for the intelligence community and we
want to start by honoring their extraordinary work in keeping the nation safe from the risks associated with terrorism. and one of are real our main goals has been to suggest reforms that is compatible. after extensive discussions and consultations, the gratitude and admiration that we had for the admiration committee has only increased as a result of interacting with them. professionalism. we found no evidence of political or religious targeting or targeting because of people because of political dissent. the focus genuinely has been on national security. we are also grateful to them for their help and cooperation on a very tight time schedule and they provided us with great access to information making our report possible. we're also grateful to many organizations and individuals over two dozen, in fact, who
actually met with us concerned with technology and innovation, with privacy, with civil liberties, with freedom of the press and rights of journalists, with the relations with other nations. friendly nations and some that aren't particularly friendly. but insuring that the relations are as cooperative as possible. countless organizations and individuals have devoted energy and time to informing our work and we are grateful to them. much of our focus has been on maintaining the ability of the intelligence community to do what it needs to do and we emphasize if there's one thing to emphasize it's this. that not one of the 46 recommendations in our report would in our view compromise or jeopardize that ability in any way. on the contrary, many of the recommendations would strengthen that ability explicitly by increasing safeguards against insider threats and eliminating certain gaps in the law that make it hard to track people under circumstances in which we
have reason to believe they don't wish to do us well. in terms of the reforms we favor, just three very general points. the first is the immense importance of maintaining a free and open internet promoting both democratic and economic values. across partisan lines, there's a commitment to internet freedom and what's done in this domain we believe should be compatible with that commitment. the second is the importance of risk management signaled i think, mr. chairman, by your opening remarks. that's a central, unifying theme considering multiple risks first and foremost the risk to national security, but including, also, the risk to public trust, risk to privacy, risk to economic values and risk to democratic self governance. so, a major task going forward, what our report tries to thread a needle on is to try to ensure a full set of rirkss are taken into account and we aren't optimizing only along one
dimension. the third point is the importance of accountability which is a unifying theme for our 46 recommendations. accountability to senior level policy officials, accountability to the legal system, to congress and this committee through increased transparency and disclosure and above all to the american people. through transparency and disclosure. and i should emphasize that one form of accountability includes steps that would help increase public trust not just within the united states but throughout the world. this is a diverse group as noted. we reached all of our recommendations, this is a bit of an upset, by agreement. there are no dissents. there was no horse trading. and there is no compromising. there are 46 -- >> you never make it in the senate. >> there are 46 recommendations if my arithmetic is right. we have 230 votes. that is all five of us are behind all 46 recommendations.
no team bats a thousand or even comes close. and our transmittal letter makes clear to the intelligence community, to this committee, to the american people that we offer our recommendations with a great deal of humility and as a mere part of a process, prominently including the deliberations and judgments of this committee. we look forward to your questions. >> thank you very much. and i notice the comment i made i think a couple of things are extraordinary here. one that you did reach a consensus and i wish we could reach the same kind of consensus in the senate. and many things we do but not enough. and secondly, your comments about the professionalism of our intelligence men and women in the various intelligence communities, i totally agree with you.
as mr. morell knows without going into subject some of our closed door briefings, he's heard both republicans and democrats praise the work and some of the things he's had to bring before us. some very critical matters. and i have spent enough time with stations chiefs around the world in different places and realized how important the work that they all do. now, when the bulk phone records program is made public last year, there were some who immediately began arguing the program was critical to national security. they cited 54 terrorist plots have been thwarted. you have had reason to review those 54 examples as i have. as i read the report it reaches the same conclusion as i and others here did.
that the section 215 program contributed to only a few of those cases. was not essential to preventing any terrorist attacks. so that's been put to record. i think it's also important to look at another thing we keep hearing that somehow if this program had been in place before 9/11 it could have prevented that. now, mr. clarke, you were a senior counterterrorism official at the time of those attacks. would the bulk phone records program have prevented 9/11? >> senator, i think it's impossible to go back and reconstruct history and i think while what if history is interesting academically, it's very difficult to say with accuracy if one fact had been changed if the outcome would have been significantly
different. i think we can say this. that if the information that the federal agencies had at the time had been shared among the agencies, then one of them, the fbi, could have gone to the fisa court and could have in a very timely manner gotten a warrant to monitor the appropriate telephones. they didn't because they were unaware of the information that existed elsewhere in the government at the time. but there was a period of over two years where that information was available. so it would have been possible in a very timely manner to get a warrant from the fisa court. >> wasn't that one of the things that the senator graham and his review committee found, that it was a sharing? >> that's exactly right. the joint committee. the two intelligence committees of the house and senate found that the information was in the government at the time.
it just wasn't shared. >> thank you. now, i raise the issue of national security letters or nsls. and as you know, for those who are not familiar, they permit the government to obtain certain communications and financial and credit report records without a court order. also, as i raise, the fbi can impose a virtually permanent, permanent gag order on nsl recipients. number of us have been trying to reform that. your recommendations on nsls haven't had as much attention as other topics covered by the report but i think they're just as important. and so, professor swire, how did the review group arrive at its conclusions regarding nsls? >> thank you, mr. chairman. well, we arrived at it. the group amongst us includes
three law professors so on legal matters we were particularly vofld. we went to the fbi and we interviewed fbi counsel in detail. we also amongst us had worked quite a bit on issues related to nsls previously. based on that, one of the things we focused on was the so-called gag orders or nondisclosure orders. in the criminal world, when there's an organized crime investigation, there's often nondisclosure orders on the order of 45 or 60 days. we found out that they're heather permanent or come up for review for the first time in 50 years under current law for nsls and that's very, very different from the way that grand jury subpoenas or investigations in the criminal side happened and so that lack of disclosure and the long, long period of secrecy is certainly one thing we were concerned about. >> well, and doesn't that create a real problem in some cases of person receiving in nsl, the gag order?
>> so it poses problem for the e-mail providers, phone carriers receiving the nsls where they're not a position to describe the activities they're taking leading to situations where among other things the actual facts might be quite reasonable if understood more broadly. many of the providers expressed concern that they under this gag order cannot reassure their customers about the good practices that exist and that's been a concern for the industry, certainly. >> let me, before i yield to senator grassley, professor sunstein, let me ask you. some would say the nsls are like a grand jury subpoena. and you can have the can have t nonjudicial review and so on. do you agree with that? >> there is an overlap and the fbi has been driving that analogy. there's also another analogy, 215 itself where we recommend the certain process that's more
consistent with the normal one for getting access to people's records. we think if 215 has the structure it should, then the national security letter should follow the same structure, that the situation between them is extremely hard to justify. there is a earn analogy to the administrative subpoena, a question with breadth and scope and we think given the urgency exception that of course there would be to treat the national security letter like a 215 record seeking would not compromise any national security goal. >> thank you. and thanks, senator grassley to intrude one more question. i'll say this to mr. morell, we've heard some government officials talk about section 215 programs. they say we shouldn't --
americans shouldn't be concerned about them because phone records and nsa obtains are just m metadata and not particularly sensitive. the review group said there were some risks in opposed by the government obtaining massive amounts of met adata, could you elaborate on that? >> i'll say one of the things that i learned in this process that i came to realize in this process, mr. chairman, is that there is quite a bit of content in metadata, when you have records of the phone calls that a particular individual made, you can learn an awful lot about that person. that's one of the things that struck me. there's not in my mind a sharp distinction between meta data and content, more of a continue up. >> in the new york times op-ed,
the government should ends it domestic program, current program creates potential risk to public trust, personal privacy and civil liberty. and of course the concern i've had and some others have had, no matter who is president or who is the head of these agencies, we don't want the temptation in there to misuse it. but senator grassley, thank you for coming over and i note that senators have been joining us. i think we were all told there was going to be a vote at 2:30 and that has not happened. if we keep looking over your head, we're looking at the little white dots up on the clock to see when the next one might be. senator grassley go ahead. >> the chairman explained, what i wanted to explain. it is a very important hearing but you may not conclude that since other members aren't here.
we are all told there was going to be a vote at 2:30. before i ask questions, i have an opportunity of an opening statement. i thank all of you for being here and for your work on the committee. this is the latest in a series of hearings on government surveillance that our committee has held, nsa continues to be of great concern to my constituents and many across the country. the most important responsibility is to protect our national security while at the same time preserving our civil liberties, this is a responsibility that's quite hard to meet. rapid changes in technology are making our enemies more lethal and world more interacted and privacy more subject to possible intrusion. under these circumstances, it's useful to hear a variety of perspectives including from those outside the government. and i thank the members of the
review for your service. some of the conclusions in the review groups report may help clarify the issues before us as we consider possible reforms. first according to the report, quote, although recent disclosures in commentaries have created the impression in some quarters that the nsa surveillance is indiscriminate and persuasive across the globe, that's not the case. then the report that i quote again concludes quote, we have not uncovered any official efforts to suppress the scent or any ability to intrude in people's lives without proper justification. none of this means that the potential or abuse of these authorities shouldn't concern us. it should. and or that the nsa hasn't made serious mistakes or the law in this area couldn't be improved. indeed there's a place for
additional transparency and safeguards and oversight, but these conclusions are helpful in clarifying issues. the report recommends that the national security in the united states depends upon continued capacity of nsa and other agencies to collect essential information. in considering proposals for reform now and for the future, policy makers should avoid the risk of overreaction and taking care and making changes that could undermine capability of the intelligence community, end quote. and that's very good advice. one recommendation that may reflect this advice is the review group's proposal to reserve the controversial ability to querry telephone metadata but with some changes. one of those recommended changes is private entities, this is an interesting idea perhaps worth
investigating. i think it's legitimate to have concern that it may create some -- as many privacy problems as it solves. indeed, private companies seem to be allowing their customer's information to be hacked on what seems to be a daily basis. just as importantly, i'm concerned that in other snapss a review group may not have fooled its own advice. some of its other recommendations may seriously threaten our national security if adopted collected. for example, some of the recommendations in the report appear to make it more difficult because to investigate a terrorist than a criminal and extend to rights to foreigners without good reason and some appear to rebuild the wall between national security communities that existed before september 11th of 2001. of course, that wall helped contribute to our inability to detect and thwart the attacks on
that day and thousands died as a result. i don't mean to criticize the effort or intentions of review group but i'm concerned the group was giving such a relative shoort time to to their work as a result, for example, i understand that the group spent only one day at the nsa and if i'm wrong you can correct that. i'm also concerned that the group lacked some important perspectives, for example, none of the members experienced sup advising terrorism investigations at the department of justice or the fbi. the concern that the group produced a large number of recommendations and didn't develop some of them fully as the review group wrote, its recommendations, quote, will require careful assessment by wide range of relevant officials with close reference to those -- to the likely consequences. end of quote. that's pretty good advice. i'll look forward to continuing that process today.
i have a question for dr. morell after the review group issued its report, you wrote an opinion piece in which you emphasize that the report recommends changing the metadata program rather than any, you wrote have the program been in place more than a decade ago, it would likely have prevented the september 11th terror attacks, end of quote. further you wrote the program has quote, has the potential to prevent the next 9/11. so i would like to have you expand upon why you hold those two opinions and can you give us any specific examples of how metadata program was valuable to you when you headed the cia? >> senator, let me first say, that the reason i wrote the
op-ed with regard to 215 is i felt there was a misperception on the part of the media and much of the american public that the review group had indeed recommended an end to the program. and we did not do that. we recommended a change in our approach. and that was the main reason i wrote the op-ed to make that clear. it is absolutely clear that the 215 program has not played a significant role in disrupting any terrorist attacks to this point. that is a different statement than saying the program is not important. the program as i said in the op-ed, only has to be successful once to be invaluable. and it does carry the potential going forward to prevent a catastrophic attack on the united states. and that was another point i was trying to make. i believe it. another point i'll make, mr.
chairman, is that -- and we talked about this as a group, there is value in a negative quaery of 215 data. it is invaluable to querry the data base and if thep don't have contacts, that gives you some reassurance the attack will not be here. we talk about that in the report. >> i have a question -- let me read a lead-in. one of the changes that your report recommends concerning the metadata program, a private third party or parties hold the metadata instead of nsa. but we've seen recent instances where companies like target and neiman marcus have been unable to protect private data. my constituents would be very
concerned about privacy. so any one of you, but hopefully not all of you because i want to ask another question, what was the group's asession. of the privacy risk associated with the metadata stored in private hands and did you speak to the telephone companies to explore whether they are willing or hold to metadata. >> we did speak with the companies about that and they would rather not uphold the data. our judgment about the government holding the data is that the primary danger of the 215 metadata program is not if it is used only in the way in which its use is authorized but that it leaves sitting out there a huge amount of information, personal information about the americans that could be abused in awful ways. and the question is how to avoid that potential abuse. and one of the ways we decided it makes sense to avoid that is
to take it out of the hands of government. the concern in the fourth amendment, concern of our constitutional history is that government can do far more harm if it abuses information in its possession than private entities can. and therefore our judgment was that the government should not have possession of this information, because if it does, there's always a possibility of someone coming along down the road and seeing this as a great opportunity to get political dirt on individuals, on the activities and associations and that that's a danger that we want to avoid. the other hand, we do believe the data is useful and the idea is to find a way that would enable the government to have access to the data but minimize the risk that it could be abused in that way. keeping it in private hands would still pose privacy risks and they would be of different order and much less in the sense of the kind of abuse historically we're most concerned about. >> this will be my last
question. one of the things i'm concerned about is that we not rebuild the wall that exists between law enforcement and national security commissions, communities before september the 11th. part of that is making sure we don't make it harder to investigate a terrorism case than any other type of crime. fbi director weighed in last week on reforms you proposed to national security. he called these letters quote, a very important tool that is essential, end of quote, to the work of the fbi. he also stated, quote, what worries me about the suggestion that we impose a judicial process on nsls is that it would actually make it harder for us to do national security investigations than bank fraud investigations. so professor swire -- maybe somebody else more appropriate, but why would we want to make it
harder for agents and prosecutors to investigate espionage and terrorism than other crimes? did you consult with the director about these recommendations and finally, aren't your recommendations in this area almost exactly the same as what you i assume professor swire recommended to this committee back in 2007 long before the recent controversy about nsas. >> professors are always thrilled from several years ago and it is wrote on fisa prior to that and we went to the fbi and the fbi lawyers came to us and we met with him to discuss these issues. we've had quite extensive discussions. in terms of comparisons for criminal, any criminal investigation, you have all of the criminal powers and then you may also have the nsl and foreign intelligence communities. there is one difference that in a criminal investigation if there is some mistake or problem, that comes to light there's a check and balance there, if you have 50 years of
secrecy, we never find out what the government is doing. because of that risk of long running see kreltcy and not knowing what it is, some extra safety guards are appropriate for these secret foreign inl intelligence things. >> that's one difference. >> thank you. >> i'm going to yield to the senator feinstein. before i do that i want to place in the record -- meant to have done this earlier, detailed report by the new america foundation includes the executive branch and claims about the effectiveness of section 215, phone records overblown and misleading and then a record -- new report by hoover institution researcher concluding 215 phone records is only a marginal value. white hou without objection those will be placed in the record.
i want to say how much we appreciate the senator feinstein as a member of this with her expertise. and other members who also serve on the intelligence committee in both parties. >> thank you very much. i appreciate those comments. i'd like to submit a statement for the record, if i may. >> i at the same time ask for something to be put in the record? >> absolutely. >> without objection the items by both senator feinstein and grassley be made part of the record. >> thank you, very much mr. chairman. mr. chairman, the intelligence committee and virtually every member was there perhaps missing one, had the opportunity of talking to the professorial element of this committee last week. the intelligence element wasn't there and we regret mr. clark and mr. morell were not there. but mr. more ll, particularly for your ears, i think what we thought in reading the report
and in listening to the testimony was that the group didn't want the program to continue. and then i read your op-ed piece in the wall street journal. -- excuse me, in the "washington post" and i would like to read parts of it and see if the committee agrees, if i may. several news outlets have reported that the review group has called for an end to the program. we did not do that. we called for a change in approach rather than a whole sale rejection to better protect the privacy and civil liberties of americans key values of our republic and we recommended that the government no longer hold the data and that it be required to obtain an individual court order, which i want to ask about, for each search but make no mistake, the review group reaffirmed that the program should remain a tool of our
government in the fight against terrorism. then you go on. another misperception involved is the review group's view of the efficacy of section 215. many comment ators have said it found no value in the program. the report accurately said that the program has not been essential. i want to talk about the word essential, to preventing attacks since its creation. that's not the same thing as saying the program is not important to national security, which is why we did not recommend its elimination. mr. swire, do you agree with that, yes or no? >> there are about 14 things there. i'm sorry, i was trying to write them down. yes, on going to the private sector and keeping the program. yes on the court order for each search and the last part was -- not that it was useful to have the information from the program roughly speaking? >> yes i agree with that also.
mr. sunstein? >> i agree with every word. >> professor stone? >> i agree -- [ inaudible ] needle in the haystack -- i'm sorry, that it is possible that in the future there will be an instance in which 215 if it exists will enable us to prevent a major attack that we could not prevent. it does have value in that way. >> mr. clark, welcome, it's good to see you again. yes or no? >> senator, i think we are surprisingly all in agreement. >> good. that's what i wanted to know. >> thank you very much. now the word essential. this is a word that's debated as to its meaning. we have one recent court
decision out of the southern district of new york and i'd like to read from page 48 of that opinion. the effectiveness of both metadata collection cannot be seriously disputed. offering examples is a dangerous strategy for the government because it discloses means and methods of intelligence gathering, sux disclosures can only educate america's enemies. and nevertheless the government acknowledged several successes in congressional testimony and in declarations that are part of the record in this case. in this court's view, they offer ample justification. then it goes into al qaeda associated terrorists in pakistan, connected with an unknown person in the united states, and particularly were 215, according to the court came in, was an nsa was able to provide a previously unknown
number of one of the co-sprters. the next one is january of '09, an extremist in yemen, connection with khalid o zanny in texas and nsa notified the fbi which discovered a plot to attack the new york stock exchange. using a 215 order nsa inquiried metadata to identify potential connections. three defendants were convicted of terrorism offenses. and the fourth, again, this is a court opinion, in october of '09, while monitoring an al qaeda affected terrorist, the nsa discovered david headily, who is a major figure was working on a plot to bomb a danish newspaper office that published cartoons depicting the prophet mohammed and goes on from there. so the word essential i think is a word that is often debated.
you also say as -- that is it was likely that this could have prevented 9/11 and could quite possibly prevent another 9/11. am i correct about that? mr. morell? >> we as a group -- >> i'm asking you what said in the op-ed. >> yes, i said that. but question never talked about that as a group about 9/11. we never came to a judgment about that as a group. >> it was just your opinion. >> just my opinion. >> let me ask you another, general alexander testified to us that in '09, the nsa did in fact go to the fisa court and found that it took nine days average to be able collect the information that was necessary. are you aware of that? >> no, ma'am. >> well, that's according to testimony by general alexander,
we also know -- my time is up? is that what you're saying to me? would you let me finish? >> of course. >> he can be very strict. thank you. this was used after the fact in the boston bombing. but here's the difference, the boston -- they used emergency powers and they were able to get information quickly. this is used to prevent an attack. so those of us that see it important to revent another attack -- i don't need to tell you, terrorism is up, we know they'll come after us in they can. there's a real litany of fact. the question comes, do you not find value, substantial value in being able to prevent this attack? >> so i find substantial value in any tool that helps us prevent attacks.
i believe that 215 carries the potential to prevent attacks and that's why i think it needs to continue. but one of the important issues i think is the question of efficacy for us did not really impact our view on the change in approach to the program. we do not believe that we're going to add a substantial burden to the government by making the changes we're suggesting. if something can't be done quicker than nine days, then they need to make changes to make that happen. we also wrote into our report an emergency provision so that in emergency situation, when intelligent community knows they need to move quickly, they'll be air to inquiry the data without a court order, going to the court after the fact. >> thank you very much. >> i should note, you weren't
here for this part of the testimony, talked about 9/11, that one of the biggest problems there is that we had the information -- would have prevented 9/11. but the people with it did not communicate as they should have and i recall a number -- some of the information we had finally being translated a week or two after the event. senator lee? >> i'm told my distinguished colleague from south carolina, senior to me, needs to go somewhere so in deference to the gentleman from south carolina, i'll let him go first. >> do you want to give that much deference? >> can we vote on it? >> senator graham -- >> thank you. okay. >> senator graham, please go next and just so we'll note, we'll then go to senator blumenthal and then back to
senator lee and back to senator franken then senator cruz. let's pick up on what the chairman said. you wrote an op-ed. >> turn your microphone up. >> there we go. michael, you wrote an op ed piece that you think if this technology could have been in place before 9/11 it could have prevented the attack. that's your personal opinion? >> yes, sir. >> how many people agree with that? raise your hand if you do. >> i would say, senator -- >> that's not raising your hand. >> i think the reason we're not raising our hand not that we disagree with michael but we're not specialists in the details of 9/11. >> fair enough. >> fair enough. >> they just said they did when i read it. >> well, we'll just go with what you said. >> we agreed with the quotation, senator feinstein read from mr. morell's "washington post"
op-ed. on the 9/11 issue in particular we did not discuss as a group. >> we'll take what she said, they agreed with you. the bottom line, let's get way at the 30,000 foot level, what are we trying to do? do you believe as a group we're at war with radical islam? >> i do. >> how many of you believe we're at war? >> the difference between fighting a crime and war, there's a fundamental difference, do you agree with that? intelligence gathering is a very important tool in fighting a war, do you agree with that? >> that's a critical theme of our report. >> yeah, so i guess what i'm trying to let the nation know, what you gentleman are trying to do, we're trying to find a way to fight a war within our values and this is an unusual situation. there's no capital to conquer. there's no navy to sink. there's no air force to shoot
down. we're fighting an ideology. if we all believe that the enemy doesn't mind dying, as a matter of fact, that's first prize for these guys to die, we have to hit them before they hit us. is that generally the thought process here? we've got to identify the attack before it happens. they will not be deterred by death? >> that sounds fair. some version of that is in our report. >> al awlaki, how did we miss the fact that a major in the united states army was communicating with him? i mean, we got all of these programs and everybody is wanting to revisit the programs which i totally understand. but we've got a major in the united states army that wound up killing 19 people, that was openly talking for the whole world to see, to one of the chief terror suspects in the
world in yemen. how did we miss that and what can we do to make sure we don't miss that in the future? >> i don't quite understand to be honest the thrust of the question. our recommendations do not take away the ability of the government to use the metadata program. we shift where it stays, from the government to private sources and we save the court orders necessary, but as we make clear in the report, we do believe it's critical to protect the national security of the united states and believe our recommendations -- >> the fact that nobody can answer the question. i understand reforming the program and trying to be more sensitive to private concerns, but no one is really talked much about the fact you had a major in the united states army on active duty openly communicating with a known terrorist following his ever word and eventually got
radicalized and killed 19 -- >> senator, we do have a section in the report about military and war that talks about how the same internet, the same hardware and software that used in afghanistan and iraq, these days used back home. when it comes to surveillance own hardware and software over there, it's the same hardware and software here. that didn't used to be the true in previous wars. it is a challenge we talk about. >> let's use the anwar aulaqi analogy. if he is calling someone, we got a cell phone and dialing someone into the united states, calling someone, the program after the changes you're recommending, can it still pick that up? >> yes. >> yes. >> would a court order be necessary? >> unless there was an emergency, yes. >> do you agree with me that you don't need a court order to surveil the enemy in a time of
war? >> overseas, yes, not in the united states. >> to you agree he would be an enemy combatant? that he would fit the definition of an enemy combatant? >> probably would want to look at that, the legal authorities on that. i don't think we disagree with it but -- >> the main point is you believe we can still pick up the phone call? >> yes. >> that's good. now, if somebody is calling him from the united states, can we pick up that phone call and do something about it? >> if either end is overseas it's not 215 that's an issue, it's 702 -- >> most americans could care less about the titles -- >> it's relevant to our recommendation, sir, because on 702, the one side is overseas, we keep the same structure basically it has today. >> can you reassure america that if somebody in the united states is calling a known terrorist in
yemen we can pick that up and do something about it? >> yes. >> at the end of the day, my time is up. isn't that what we're trying to do? aren't we trying to find out who's talking to who when the person -- one of the people doing the talking is somebody who we're really worried about attacking the nation and not trying to do anything more than that. >> yes, senator, that's a very important point because it applies both domesticically where there are concerns about american citizens that don't fit and internationally where focus is on the source of situations you're discussing and not on picking on people's private communications. >> thank you. >> i appreciate you knowing the difference between the 702 and -- senator graham, we'll have to look at what adequate safeguards especially when
dealing with an agency that doesn't have adequate safeguards to keep a contractor from stealing millions and millions and millions of file and still are today after spending millions of dollars, don't know all of the details to. and that -- i just don't want to get lured by all of the technology we have lured into kplasantsy. we saw the same thing -- no mean to be picking nsa, when state department and military put all kinds of files and all where a private first class can go in and download it all under lady ga-ga cd and then cause -- as we all know, enormous difficulties for the united states when these highly classified cables from ambassadors were made public. senator blumenthal.
>> thank you, mr. chairman for holding this hearing and thank you to each of you for your very impressive and extraordinarily important work. i think you have elevated and provided credibility to very specific and very significant proposal that advance the reform effort in our intelligence gathering operations. and senator graham referred to the present evidence to counter terrorism as a war, there is a saying, it's an addage, abelieve attributed to the romans, my classic education isn't good enough to know, but the saying is in war law is the first casualty. and you have provided a really profound important service in making sure we do not have law as casualty and as you say in your report, it's the first
principle you states, the united states must protect at once two different forms of security, national security and personal privacy. there's a reason why courts matter and founders of our nation thought they mattered. they wanted to prevent general warrants and secret courts like the star chamber and one of the reasons they rebelled against it. my questions focus on the courts and i've advanced and proposed the constitutional advocate and public interest advocate, however you want to label it, that would be independent institutionalized to ensure there is an adverse sarial proceeding, whenever the advocate thought it was necessary, not on an ad hock basis, but court's benefit from hearing both sides and from having the advocate decide that another side should be
represented. and i'd like to hear from you because we've heard the contrary point of view that it should be an amicus free -- as it has been sometimes called, or some other kind of ad hoc proceeding and maybe beginning with professor sunstein, with you, stating on behalf of the panel, why you chose this structure because obviously the president is going to have to make a decision as to whether adopt that idea and we as a panel and the senate will have to deliberate as well. >> history is relevant here. there was an understanding when the court was created that it would be basically dealing with issues of fact like whether a warrant was justified, not with large issues of law and policy and as the system is developed over the years as you're well aware, senator, often the judges are being asked to decide the large questions. and so adversary proceeding
seemed warranted in a setting of that kind. we're well aware that some judges for whom we have a lot of admiration on the court believe that the judge ought to be in charge of deciding when the public interest advocate is relevant. we think that's not consistent with our traditions. normally it isn't the case. the judge gets to decide. this interest gets a lawyer. we think to have someone who's a dedicated officer designed to protect privacy and liberty interests, a very important safeguard. >> and the provision of an adverse sarial proceeding such as you described reflects the change in the role of the court, that's a very important point. wouldn't necessarily delay it or i am peril secure if there were preclearance and if warrants were granted and then reviewed afterward, in other words, we all know in the ordinary criminal process, some of us had
knocked on the judge's door in the middle of the night, if we thought it was necessary to get awarrant. and the same principle applies here, does it not? >> that is very important. so senator feinstein and senator graham rightly draw attention to the immediacy of certain threats. the fact that some things coming and where you need information fast and as you say consistent with our traditions to accommodate emergency situations. and in the short time i have remaining, perhaps i could ask you to elaborate a little bit on the reasons why you recommended a change in the method of selection which i agree is very, very important to the trust and confidence in this process and i think one of the reasons for reforming the whole system is to preserve and enhance trust and confidence of the american people, that we're doing both forms of security here, national security and personal privacy. >> i think it was justice frankfurt who emphasized the
importance of doing justice and the appearance that justice is done. and that is connected with your point. we also think particularly in the context of selection of the judges for the fisa court, a little diversity is a good idea across democratic and republican appointees, as the report makes clear we have all of the respect in the world for the chief justice and have nothing critical to say about him in this connection, but it just is the case political party in terms of appointing president, that's awkward. and we would like to seal more diversity. >> in accord with the conditions of our judicial system that appearance and deception has to be served because of the immense and many respects undemocratic powers that courts exert undemocratic because we believe in elections generally and here we have unelected fisa court
>> the work that you have done has been very helpful and i am confident it will do a lot to frame this important discussion as we move forward. the importance of these issues cannot be overstated. liked the things that i that you pointed out in your report appears on page 15. you pointed out an interesting coincidence. the concept of current -- of security has tool meeting --